Beds Direct Nationwide Limited v. Keyword Marketing, Inc.
Case No. D2007-0406
1. The Parties
The Complainant is Beds Direct Nationwide Limited of Swindon, United Kingdom of Great Britain and Northern Ireland, represented by Rouse Legal, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Keyword Marketing, Inc. of Charlestown, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name <hellibeds.com> (“the Domain Name”)
is registered with Capitoldomains, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 15, 2007. On March 19, 2007, the Center transmitted by email to Capitoldomains, LLC a request for registrar verification in connection with the domain name at issue. On March 22, 2007, Capitoldomains, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 29, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 18, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 19, 2007.
The Center appointed William P. Knight as the sole
panelist in this matter on April 30, 2007. The Panel finds that it was properly
constituted. The Panel has submitted the Statement of Acceptance and Declaration
of Impartiality and Independence, as required by the Center to ensure compliance
with the Rules, paragraph 7.
4. Factual Background
The current registration of the Domain Name dates from July 26, 2005.
The Complainant is a successful retailer of beds and related products in England and Wales which has traded under the name HELIBEDS or HELI-BEDS since 2002. The Complainant is the registered owner of UK trademark No. 2290016 for the series HELIBEDS, HELI-BEDS and HELI BEDS in class 20, filed on January 14, 2002.
The Complainant’s own website uses the domain name <helibeds.co.uk>, but <helibeds.com> also belongs to the Complainant and resolves to the Complainant’s website.
The Respondent registered the Domain Name on July 26, 2005. Nothing is known of the Respondent other than that it has been identified as a respondent in a series of UDRP decisions, including:
2. Edmunds.com, Inc.v.Web Advertising, Corp. / Keyword Marketing,
Inc., WIPO Case No. D2006-1380 (<edmundscar.com>
and <edmundz.com>);
3. Giata Gesellschaft für die Entwicklung und Vermarktung interaktiver Tourismusanwendungen
mbHv.Keyword Marketing, Inc., WIPO
Case No. D2006-1137 (<giata-hotelguide.com>);
4. La Société des Autoroutes Paris Rhin Rhônev.Keyword Marketing
Inc., WIPO Case No. D2006-1270 (<parirhinrhone.com>);
9. General Mills Inc. v.Keyword Marketing, Inc., NAF Claim No. FA0702000921284 (<fruitroll-ups.com>).
Each of these cases resulted in a decision adverse to the Respondent.
The Domain Name is being used solely to resolve to a page providing links to
competing suppliers of beds and related products and services.
5. Parties’ Contentions
A. Complainant
In accordance with paragraph 4(a) of the Policy, the Complainant asserts:
(i) that the Domain Name is confusingly similar to the Complainant’s registered trademarks; and
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
In respect of paragraph 4(a)(i), the Complainant asserts that it has a substantial reputation under the name HELI-BEDS in Southern England and Wales, as a result of extensive advertising and successful trading using this name since 2002. The Complainant points out that the only difference between its trademarks and the Domain Name is the addition of an ‘l’, a difference so minor that a consumer seeking the Complainant could easily mis-spell or simply mis-remember the Complainant’s name and mark. With such similarity, confusion is inevitable.
In respect of paragraph 4(a)(ii), the Complainant asserts that there is nothing to indicate that the Respondent uses the name “Hellibeds” in any legitimate fashion. The name HELIBEDS is an invented word, devised and put into use by the Complainant in 2002, and registered as a trademark, well before the Respondent registered the Domain Name. The Complainant contends that the Respondent’s registration and use of the Domain Name is so inherently likely to cause confusion among Internet users searching for the Complainant that it cannot constitute a bona fide offering of goods or services nor can it constitute a legitimate non-commercial or fair use of the Domain Name.
In support of paragraph 4(a)(iii), the Complainant notes that the only apparent purpose and use of the Domain Name is to provide links to third parties’ websites operating in the Complainant’s field of business, which seems to indicate that the Respondent must have registered the Domain Name in circumstances where it knew full well of the Complainant’s reputation in and legal rights to its trademarks. Likewise, redirection to a competitor’s website is a circumstance which falls within paragraph 4(b)(iv) of the Policy as an indication of registration and use in bad faith. The Complainant also refers to the Respondent’s prior history of such conduct referred to above.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy.
However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent cannot be in a better position by failing to respond than it would have been if it had responded, particularly if it had shown rights or legitimate interests in the Domain Name.
Paragraph 15(a) of the Rules instructs the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. In the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion which is capable of being drawn from the evidence provided by the Complainant is not contradicted by the Respondent.
A. Identical or Confusingly Similar
There can be no doubt as to the Complainant’s rights in its trademarks, including the word HELIBEDS, in the United Kingdom of Great Britain and Northern Ireland.
Placed side-by-side, the similarity of the Complainant’s trademarks and the Domain Name is self-evident. The common experience of mis-typing any entry using a keyboard, especially when trying to type from memory a word which is invented, leads the Panel to the conclusion that it would be an easy and very likely mistake for users of browser software to type in <hellibeds.com> when seeking <helibeds.com>, adding an extra ‘l’, and it would be quite as likely for an English person to seek this domain when searching for the Complainant as he or she might seek <helibeds.co.uk>.
B. Rights or Legitimate Interests
It is clear from the evidence that the Complainant’s trademarks consist of an invented word HELIBEDS, the commencement of use of which by the Complainant predates the registration of the Domain Name.
In the absence of any explanation from the Respondent, it is impossible to know how the Respondent happened upon so similar a word, or how it could have any legitimate interest in it.
Furthermore, the fact that Respondent has populated its page with links to websites of suppliers of products of the same kind as those supplied by the Complainant, whether or not competing with the Complainant, supports a conclusion that the Respondent was fully aware of the Complainant’s name and business before registering the Domain Name.
In the absence of evidence to the contrary from the Respondent, the Panel, therefore, agrees with the Complainant’s submission that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy directs that the Complainant must establish that the Domain Name has been registered and used in bad faith.
So far as concerns the first limb of this requirement, registration in bad faith, for reasons explained above, the Panel concludes that Respondent registered the Domain Name in circumstances where it must have been aware of the pre-existing rights of the Complainant. The Respondent has had ample opportunity to explain its reasons for choice of the Domain Name and its intention to make some legitimate use of the Domain Name, but not availed itself of this opportunity. As a consequence, the Panel finds that the Respondent registered the Domain Name in bad faith.
Furthermore, paragraph 4(b)(iv) of the Policy gives an example of registration
and use in bad faith, namely directing Internet users away from the Complainant
for commercial gain by creating a likelihood of confusion with the Complainant’s
mark. The Respondent’s use of the Domain Name has been for pay-per-click
or other apparently remunerated services to direct Internet users to other suppliers
of products and services the same as those of the Complainant, and accordingly,
the Panel concludes that the Respondent has registered and is using the Domain
Name in bad faith.
7. Decision
In the light of the findings in paragraph 6 above, the Panel concludes that:
- the Domain Name is confusingly similar to the trademark HELIBEDS belonging to the Complainant; and
- the Respondent has no rights or legitimate interests in the Domain Name; and
- the Domain Name has been registered and is being used in bad faith.
Accordingly, the Panel orders in accordance with paragraphs 4(i) of the Policy and 15 of the Rules that the Domain Name <hellibeds.com> be transferred to the Complainant.
William P. Knight
Sole Panelist
Dated: May 10, 2007
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